On May 14, 2019, Wisconsin Assembly Speaker Robin Vos announced the creation of the Speaker’s Task Force on Adoption, charged with addressing the barriers faced by biological and adoptive parents in the adoption process.

On Oct. 3, 2019, the task force published an interim report – and proposed numerous bills in the 2019-20 legislative cycle.  One of the task force’s recommendations was to eliminate jury trials in the fact-finding portion of the adoption process.

Wisconsin Assembly Bill 628, introduced in the 2021-22 legislative session, proposed to eliminate the ability for a respondent to a Termination of parental rights (TPR) action to have a jury determine whether grounds exist for the termination of a parent’s rights.

The bill was subsequently amended to restore the 12-person jury statutory right for the fact-finding portion of a TPR hearing, and eliminate the jury trial right for CHIPS and UCHIPS proceedings.

A second amendment restored the jury trial right for CHIPS and UCHIPS proceedings to children subject to the Wisconsin Indian Child Welfare Act, and restricted the standing to request a substitute judge in a TPR hearing to the petitioner and respondent parent.

This bill and its associated amendments were disposed of under Senate Joint Resolution 1 on March 15, 2022, at the conclusion of the session’s floor business, without reaching the floor for a vote.

Current Process

The current statutory process for a termination hearing is controlled by subchapters V and VIII of Wis. Stat. chapter 48. The court of jurisdiction in Wisconsin is the juvenile court.

When a petition to involuntarily terminate parental rights is filed, or upon an order of a court of proper jurisdiction, Wis. Stat. section 48.31 directs the court to hold a fact-finding hearing – either a bench or jury trial – to determine if any of the statutory grounds in Wis. Stat. section 48.415 are present to a clear and convincing standard.

Proposing the Loss of an Important Right

Long standing jurisprudence, at both the federal and state level, places any potential encumbrance of constitutionally protected rights of an individual to be subject to the highest standard of review, proof, and a trial by jury prior to enforcement of the encumbrance.¹

However, the right to a jury trial in a Wisconsin TPR case is statutory, not constitutional.² Therefore, elimination of the statutory provisions granting a jury trial option to respondent leaves parents facing termination of their rights with no other recourse beyond a bench trial.

Due Process and Defendant’s Rights

Although the right to a jury trial is guaranteed by the Constitution in Art. III and in the Sixth and Seventh Amendments, the U.S. Supreme Court has additionally held that there is no constitutional right to a jury trial in juvenile court.³

In juvenile proceedings, the applicable due process standard is fundamental fairness, as developed by In re Gault⁴ and In re Winship,⁵ which emphasized factfinding procedures, but, in our legal system, the jury is not a necessary component of accurate factfinding.⁶

What is left unanswered is how the right of a jury trial applies in a juvenile proceeding where an adult is the defendant. “The Court has not heretofore ruled that all rights constitutionally assured to an adult accused are to be imposed in a juvenile proceeding.”⁷

Recent court decisions have declared that, in sentencing, various factors exist to ensure that the residual rights of the defendants are protected under the sentencing guidelines present at the federal level (note: Wisconsin does not have a statutory sentence guideline framework).⁸ These factors include a consideration of if the guidelines are mandatory (also referred to as presumptive) or advisory (or permissive). The narrowest set of mandatory (either statutory or from the mandatory guidelines) sentence range is applied to all factors that the judge uses to determine sentence.

If any factor raises either the maximum⁹ or minimum¹⁰ sentence, SCOTUS has held that these factors morph into elements of the crime to be proven beyond a reasonable doubt and by a jury.¹¹ Otherwise, the factors are to be considered as within the discretion of the sentencing court and to the standard or both preponderance of the evidence and a reasonable standard that the is the subject of court of appeals review.

This illustrates that, at least in a criminal scenario, the jurisprudence is to err on the side of extending constitutional safeguards to the defendant when the issues before the court are of a fact-finding nature whether during the trial itself, or even in the post-conviction sentencing phase if the court is considering the presence of facts not determined during the trial itself.

Case law has established that the TPR fact-finding hearing does not have a constitutional protection for a jury trial.¹² The reasons this statutory safeguard was eliminated are rooted in judicial efficiency as well as a concern for ensuring that competent analysis of the statutory factors is applied in a manner consistent with the “best-interest of the child” doctrine.

Judicial Efficiency versus Safeguarding Parental Rights

However, juries for many years have struggled with the application of statutory factors – in the form of elements of a crime – in criminal trials without issues. To ask the same of a jury in the form of a fact-finding hearing in a TPR matter is quite similar.

Judicial efficiency is an important matter of public policy in Wisconsin, but the safeguard of parental rights is equally important. I believe that the due process safeguard of the jury trial option is superior to any efficiency gains the justice system would realize if this option is eliminated.

This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ USCS Const. Art. III, § 2, Cl 3. USCS Const. Amend. 6.  USCS Const. Amend. 7. USCS Const. Amend. 14. See Also United States v. Zucker, 161 U.S. 475 (1896).  See Also District of Columbia v. Colts, 282 U.S. 63 (1930). See Also Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916).

² Steven V. v. Kelley H. (In re Alexander V.), 2004 WI 47, ¶34, 271 Wis. 2d 1.

³  McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

⁴ In re Gault, 387 U. S. 1.

⁵ In re Winship, 397 U. S. 358.

⁶ Id. at p. 403, U. S. 543. 

⁷ Id. atp. 403, U. S. 545.

⁸ See Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).

⁹ See Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).

¹⁰ See United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).

¹¹ Id. See also United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). 

¹² See, generally, Steven V. v. Kelley H. (In re Alexander V.), 2004 WI 47, ¶34, 271 Wis. 2d 1.